This article introduces the rationality and legitimacy conditions and positions them within contemporary sceptical and non-sceptical accounts of adjudication. Two sections are concerned with non-sceptical accounts of adjudication. The next section begins with an analysis of the rationality condition. The article moves on to show that the existence of incommensurability in hard case adjudication ensures that adjudication cannot be rational in the strong sense. It demonstrates that values are implicated within the practice of adjudication, by reference to some examples and by invoking an old jurisprudential lesson about the nature of rule application and interpretation. This article further discusses value pluralism and sketches three claims. It argues that it is difficult to show that rationally indeterminate judicial decisions are legitimate. This article concludes that law and adjudication may not be as pre-eminently desirable as often assumed, since they are not more rational than other non-arbitrary means of organizing our collective life and resolving disputes.
Syed Adnan Hussain
This article examines the historical origins, sources, and subject-matter jurisdiction of Anglo–Muhammadan law, along with its influence on the trajectories of Islamic law. After providing a short history of Anglo–Muhammadan law, the article discusses its subject matter. In particular, it considers the contributions of Syed Ameer Ali, especially in the area of trust law, or awqaf. It proceeds by looking at various sources of Anglo–Muhammadan law, which include textbooks and English translations of primary texts, case law, and legislation and custom. To give a sense of how Anglo–Muhammadan law operated in case law, the 1922 case of Narantakh v. Parakkal is analyzed. The article concludes with an overview of changes in Anglo–Muhammadan law in the immediate period after independence and partition of India.
Scott J. Shapiro
This article brings out the paradoxical nature of authority and discusses the solutions that have been offered on authority's behalf. It further examines two revisionist strategies. The first approach denies that legitimate authorities have the right to impose obligations when they are wrong. The second approach explores the basic premise of the paradoxes, namely, that legitimate authorities have the power to obligate even when wrong. This article suggests modifying our views about the nature of moral autonomy and attempts to justify these assertions and to demonstrate how their acceptance solves the paradoxes of authority within the different frameworks of legitimate authority. It concludes with various arguments that state moral anatomy constitutes the best response to the philosophical anarchist's challenge.
Mariam Sheibani, Amir Toft, and Ahmed El Shamsy
This article examines whether the Qur’an served as a source for the early jurists during the classical period; whether Hadith reports contain authentic information regarding Muhammad’s sayings and actions (and if they do not, when and how they became attributed to him); whether and how the regional legal traditions were transformed into legal schools centered around particular individuals; and how the nature of legal reasoning changed within this period. The article first revisits the debates regarding the role of the Qur’an and Hadith, respectively, in the formulation of Islamic law. It then reviews scholarship on the phases of Islamic law’s development, beginning with the emergence of geographically defined legal traditions and culminating in the formation of the legal schools and their distinctive theoretical principles and substantive doctrines. It concludes by suggesting directions for future research.
This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the ‘private’ sphere and the strongly ‘public’ or collective political nature of much of the ‘private’ ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon—globalization (through cyberspace)—that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.
This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature and status of legislative intent. A vital aspect of the issue concerns the sources on which judges should draw. This article deals with central features of American constitutionalism as the situation within which to consider problems of constitutional interpretation.
The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.
Mark E. Brandon
This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the origins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legitimacy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are considered: the first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three).
Emilios Christodoulidis and Johan van der Walt
This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.
Rula Jurdi Abisaab
This article examines the relationship between the ‘urfi (monarchical/sultanic) and the shari‘a courts in the administration of justice in Safavid Iran. In particular, it considers the notion that there was a split between a sacred and a secular basis for justice in Safavid Iran. To prove that this is not the case, the article looks at the roles of the Shah, the sadr, the qazis, the shaykh al-Islam, and the divan-begi in administering justice during the period. It shows that legal roles and processes in the Safavid justice system unfolded within a religious framework, reflecting the interface between ideal stipulations and practical ends, and between public shari‘a -derived law and private monarchical law. This provides evidence that shari‘a and ‘urfi courts were interdependent and provided overlays of jurisdiction in Safavid Iran.
Mónica García-Salmones Rovira
This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of international law, which was written at the beginning of the twentieth century. Oppenheim’s recognition of the economic interdependence of nations was one important factor in his success in establishing the international economic system as the supporting framework of his Family of Nations, and as the underlying theory of his international law. Afterwards, the chapter maps the complex legal theoretical transition embedded in the change of philosophical position as regards the understanding of universalism. This involves a move from the transcendent realist philosophy of an earlier era to the immanent philosophy of the Austrian positivists at the beginning of the century.
Elizabeth A. Meyer
The human qualities, types of arguments, and the varieties of evidence that brought victory in a Roman courtroom are the subject of long controversy. The argument offered here is that evidence was subordinated to argument in Roman legal practice and the common thread tying arguments in various types of cases together was personal prestige of a particularly Roman sort—auctoritas, dignitas, gravitas—ideally possessed by litigants, advocates, witnesses, and supporting onlookers. But inert prestige was ineffectual: prestige carried with it expectations of behaviour, and its possessors were required to activate its power by appropriate behaviour in court, which confirmed the truthfulness of what they said, and at the same time strictly avoid inappropriate behaviour, which lessened or obliterated the power of their prestige.
This Chapter traces the evolution of theories and methods in law and finance following the financial crisis in 2008. It begins by analysing the notion of financial (and other) markets as complex, adaptive systems before turning to a discussion of the efficient capital market hypothesis. It then looks at the emergence of prices as a learning process, in which agents adjust their expectations and actions to a changing environment. It also examines the implications of behavioural economics for law and finance, along with the coevolution of the legal and financial systems. In addition, the Chapter considers methodological issues arising in the context of the empirical study of law and finance, with reference to data-coding techniques (‘leximetrics’) and statistical methods (time-series econometrics). Finally, it discusses how financial crises can be better understood by means of a learning model of the policymaking process.
This article considers some of the conceptual relations between the conventionally identified sources of law and the idea of legal validity. It begins with the discussion of concept of legal validity and legal system. It also presents the idea of inclusive positivism with three versions. There are two main ways in which inclusive positivists can claim that morality bears on what the law is. One type of phenomenon is conditional validity and the other is content validity. This article also briefly considers another version of inclusive positivism. This version maintains that law is basically source based, but it also incorporates those norms that are entailed by source-based law. This article concludes with the argument that the inclusive version of legal positivism, which was meant to form a middle ground between exclusive legal positivism and Dworkin's anti-positivist doctrine, is invalid.
This article examines the place of law in the falsafa (philosophy) tradition. Political philosophy was largely a derivative topic for the philosophers of the Islamic world. One indication of this is that the falsafa tradition did not produce a coherent philosophy of law that would concern itself with the meaning, essence, source, and forms of “law”: as such. This article looks at several philosophers in the Islamic tradition who are associated with political philosophy, including Abu Nasr al-Farabi and Ibn Sina, with particular emphasis on their view that the highest form of human existence consists in intellectual and spiritual perfection. It also considers the views of Ibn Bajja, Ibn Tufayl, and Ibn Rushd.
This chapter describes encounters between feminism and international law in four parts. It begins by outlining the diversity of feminist visions for (and against) international law to highlight the dynamism of the field, the contestation between its various political and legal commitments, and the different ways that the feminist subject of law is conceived. Secondly, the chapter examines the range of critical analyses that feminists have developed in the wake of a particular 1991 American Journal of International Law (AJIL) article. The chapter then explores the trajectories of feminist reform projects in international law. Lastly, this chapter highlights the paradoxes of feminist engagement with international law, arguing that the practices of critique and reform, and their productive tensions, are essential to resisting the law’s colonization of feminist politics and keeping feminist imaginaries of a better world alive.
This chapter examines how feminist legal history is conceived of as a unified field of study. The first part surveys the current state of the field, and by setting aside national borders and disciplinary origins, pays attention to the broader themes, topics, and issues feminist legal history has chosen to privilege. The second part, building upon this presentation of the field, by drawing attention, not only to the thematics of feminist legal history, but also to the process of its production, offers a critical understanding of what exists; in particular, the implications of its interdisciplinary nature. Finally, in pursuing a critical account of the work produced, possibilities for otherwise thinking of and ‘doing’ feminist legal history are considered.
This article is concerned with ‘formalism’, as it appears, as a term of criticism in the tradition of thought originating with Holmes and the Realists. It presents two examples of the first difficulty in grasping the aim of this tradition, i.e., scarecrows, and it then briefly elaborates the second difficulty, i.e., the varieties of formalism. It critically surveys what various writers since Holmes have meant by ‘formalism’ and places the various types of formalism in relation to one another. It also offers directions for addressing two broad questions that are threaded throughout the previous tapestry of formalisms, those of desirability and the very possibility of judicial adherence to rules. The purpose here is to motivate certain features of post-Holmesian thought that would otherwise seem confusing.
This chapter reconsiders the arc of Hannah Arendt’s (1906–1975) writings about international law. Her scattered remarks present a careful pattern of demands upon international law, announced at the discipline’s key formative turns, for the resolution of the Jewish Question or rather, the series of issues problematizing Jewish-ness as uncertainty about citizenship, nation, and race from the eighteenth century onward. But international law was an important site for her attention even where law was adjuvant or ancillary to the broader sweep of her analytical project. Arendt repeatedly returned to international law expecting answers as a political thinker: for the working out of tensions within the idea of nation for the sake of humankind and the plural life of politics.
Jochen von Bersnstorff
This chapter illustrates the deep structure of the Kelsenian approach to international law from an intellectual history perspective. Hans Kelsen (1881–1973) was a Viennese law professor in between the two world wars, who is seen by many as one of the most outstanding, if not the most outstanding, jurist of the twentieth century. Therefore studying the Kelsenian approach includes the political, doctrinal, and philosophical context in which Kelsen developed his fundamental critique of the then-prevailing German international law theory. Furthermore, the chapter reveals the subversive and revolutionary force of Kelsen’s critical methodology with a couple of examples, concluding with a few words on how German international legal scholarship dealt with Kelsen’s legacy after the Second World War.